Bautista v. 165 West End Avenue Associates, L.P.

Bautista v 165 W. End Ave. Assoc., L.P. (2016 NY Slip Op 02540)

Bautista v 165 W. End Ave. Assoc., L.P.

2016 NY Slip Op 02540

Decided on March 31, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 31, 2016
Tom, J.P., Sweeny, Manzanet-Daniels, Gische, Gesmer, JJ.

109503/08 691 591070/08 590876/10 690

[*1]Pedro Bautista, Plaintiff-Appellant,

v

165 West End Avenue Associates, L.P., Defendant, The 165 West End Avenue Condominium, et al., Defendants-Respondents. The 165 West End Avenue Condominium, et al., Third-Party Plaintiffs-Respondents, Lyn Blacksberg, Third-Party Defendant-Respondent. [And Another Third-Party Action]

Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for appellant.

Fabiani Cohen & Hall, LLP, New York (John V. Fabiani, Jr. of counsel), for the 135 West End Avenue Condominium and 165 West End Avenue Owners Corp., respondents.

Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for Lyn Blacksberg, respondent.

Judgment, Supreme Court, New York County (Debra A. James, J.), entered February 28, 2014, insofar as appealed from as limited by the briefs, dismissing the Labor Law § 241(6) claim as against defendant 165 West End Avenue Owners Corp. (Owners), unanimously affirmed, without costs.

Plaintiff allegedly was injured when a screw that he was removing in the course of replacing window balances in a cooperative apartment unit "jumped" and struck him in the eye. Plaintiff is correct that his work replacing window balances constitutes "maintenance" pursuant to Industrial Code (12 NYCRR) § 23-1.4(b)(13). However, because plaintiff did not perform the work in the context of construction, demolition or excavation, his Labor Law § 241(6) claim was correctly dismissed (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526 [2003; Martinez v Morris Ave. Equities, 30 AD3d 264 [1st Dept 2006]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 31, 2016

CLERK